Before: Mary M. Schroeder, Dorothy W. Nelson, and M. Margaret McKeown, Circuit Judges.
ORDER AND AMENDED OPINION
1. On slip opinion page 12, footnote 2, the following text was added to the end of the footnote: < hence, it does not affect our analysis that some of sister circuits have concluded groundwater is a navigable water.> See Rice v. Harken Expl. ,
2. On slip opinion page 19, footnote 3, the following text was added to the end of the footnote: < those principles are especially relevant in the cwa context because law authorizes citizen suits to enforce its provisions.> See Alaska ,
3. On slip opinion at page ----, the following text replaces the sentence after the citation to Haw. Wildlife ,
With these amendments, Judge McKeown voted to deny County of Maui's Petition for Rehearing En Banc. Judge Schroeder and Judge Nelson recommended denial of petition for rehearing en banc. The full court has been advised of the petition for rehearing en banc and no judge of the court has requested a vote on whether to rehear the matter en banc.
The petition for rehearing en banc is DENIED . No further petitions for rehearing or rehearing en banc may be filed.
OPINION
D.W. NELSON, Senior Circuit Judge:
The County of Maui ("County") appeals the district court's summary judgment rulings
BACKGROUND
1. The Lahaina Wells and the Effluent Injections
The County owns and operates four wells at the Lahaina Wastewater Reclamation Facility ("LWRF"), the principal municipal wastewater treatment plant for West Maui. Wells 1 and 2 were installed in 1979 as part of the original 1975 plant design, and Wells 3 and 4 were added in 1985 as part of an expansion project. Although constructed initially to serve as a backup disposal method for water reclamation, the wells have since become the County's primary means of effluent disposal into groundwater and the Pacific Ocean.
The LWRF receives approximately 4 million gallons of sewage per day from a collection system serving approximately 40,000 people. That sewage is treated at the Facility and then either sold to customers for irrigation purposes or injected into the wells for disposal. The County disposes of almost all the sewage it receives-it injects approximately 3 to 5 million gallons of treated wastewater per day into the groundwater via its wells.
That some of the treated effluent then reaches the Pacific Ocean is undisputed. The County expressly conceded below and its expert confirmed that wastewater injected into Wells 1 and 2 enters the Pacific Ocean. The Associations submitted various studies and expert declarations establishing a connection between Wells 3 and 4 and the ocean. Although the County quibbles with how much effluent enters the ocean and by what paths the pollutants travel to get there, it concedes that effluent from all four wells reaches the ocean.
The County has known this since the Facility's inception. The record establishes the County considered building an ocean outfall to dispose of effluent directly into the ocean but decided against it because it would be too harmful to the coastal waters. It opted instead for injection wells it knew would affect these waters indirectly. When the Facility underwent environmental review in February 1973, the County's consultant-Dr. Michael Chun-stated effluent that was not used for reclamation purposes would be injected into the wells and that these pollutants would then enter the ocean some distance from the shore. The County further confirmed this in its reassessment of the Facility in 1991.
According to the County's expert, when the wells inject 2.8 million gallons of effluent per day, the flow of effluent into the ocean is about 3,456 gallons per meter of coastline per day-roughly the equivalent of installing a permanently-running garden hose at every meter along the 800 meters of coastline. About one out of every seven gallons of groundwater entering the ocean near the LWRF is comprised of effluent from the wells.
2. The Tracer Dye Study
In June 2013, the U.S. Environmental Protection Agency ("EPA"), the Hawaii Department of Health ("HDOH"), the U.S. Army Engineer Research and Development Center, and researchers at the University of Hawaii conducted a study (the "Tracer Dye Study" or "Study") on Wells 2, 3, and 4 to gather data on, among other things, the "hydrological connections between
The Study concluded "a hydrogeologic connection exists between ... Wells 3 and 4 and the nearby coastal waters of West Maui." Eighty-four days after injection, tracer dye introduced to Wells 3 and 4 began to emerge "from very nearshore seafloor along North Kaanapali Beach," near Kahekili Beach Park, about a half-mile southwest of the LWRF. According to the Study, the effluent travels in this southwesterly path "due to geologic controls that include a hydraulic barrier created by valley fills to the northwest." The Study found "64 percent of the treated wastewater injected into [Wells 3 and 4] currently discharges [into the ocean]." It further concluded "[t]he major discharge areas are confined to two clusters, only several meters wide, with very little discharge [occurring] in between and around them."
Tracer dye from Well 2 was not detected in the ocean. But this was because Wells 3 and 4-located between Well 2 and the areas in the ocean where the wastewater discharges-"inject the majority of effluent," which likely diverted the injected wastewater from Well 2 into taking "a different path other than directly towards the submarine springs" where the wastewater from Wells 3 and 4 discharges. If Well 2 were to receive most of the effluent at the Facility, that effluent would also take the southwesterly path taken by the wastewater from Wells 3 and 4. And "[b]ecause Well 1 is located in very close proximity to Well 2, ... the [T]racer [S]tudy's predictions for the fate of effluent from Well 2 can be used to predict the fate of effluent from Well 1," according to the Associations' expert Dr. Jean Moran.
3. The District Court's Summary Judgment Rulings
The County appeals three of the district court's summary judgment rulings. In the first, the district court found the County liable as to Wells 3 and 4 for discharging effluent through groundwater and into the ocean without the National Pollutant Discharge Elimination System ("NPDES") permit required by the CWA. Haw. Wildlife Fund v. Cty. of Maui ,
In its second order, the district court held the County liable as to Wells 1 and 2 based largely on the same reasons it found the County liable on Wells 3 and 4. Haw. Wildlife Fund v. Cty. of Maui , Civil No. 12-00198 SOM/BMK,
Finally, the district court found the County could not claim a due process violation because it had fair notice under the plain language of the CWA that it could not discharge effluent via groundwater into the ocean.
This appeal followed.
The Ninth Circuit "review[s] the district court's grant or denial of motions for summary judgment de novo ." Animal Legal Def. Fund v. U.S. Food & Drug Admin. ,
DISCUSSION
The Clean Water Act is designed to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters."
1. Liability under the CWA
The County argues the district court erred in concluding it was liable under the CWA as to all four of its wells. We disagree.
a. Point Source Discharges
Neither side here disputes that each of the four wells constitutes a "point source" under the CWA. Given the wells here are "discernible, confined and discrete conveyance[s] ... from which pollutants are ... discharged," and the plain language of the statute expressly includes a "well" as an example of a "point source," the County could not plausibly deny the wells are "point source[s]" under the statute. § 1362(14) (internal quotation marks omitted). The record further establishes that from these point sources the County discharges "pollutants" in the form of treated effluent into groundwater, through which the pollutants then enter a "navigable water[ ]," the Pacific Ocean. See
That the County's activities constitute "point source" discharges becomes clearer once we consider our jurisprudence on "nonpoint source pollution": "[Such] pollution ... arises from many dispersed activities over large areas," "is not traceable to any single discrete source," and due to its "diffuse" nature, "is very difficult to regulate through individual permits." Ecological Rights Found. v. Pac. Gas & Elec. Co. ,
Ours is a different case entirely. Unlike the "millions of cars" discussed in Ecological Rights , here we have four "discrete" wells that have been identified and can be "regulate[d] through individual permits."
b. Indirect Discharges
The County contends, however, that under the CWA, it is not sufficient to focus exclusively on the original pollutant source to determine whether an NPDES permit is needed and that how pollutants travel from the original point source to navigable waters matters. More specifically, the County contends the point source itself must convey the pollutants directly into the navigable water under the CWA. As the wells here discharge into groundwater, and then indirectly into the Pacific Ocean, the County asserts they do not come within
The County first cites Alaska , where we held that point source pollution occurs when "the pollution reaches the water through a confined, discrete conveyance," regardless of "the kind of pollution" at issue or "the activity causing [it]." Id. at 558 (citation omitted). As the effluent here reaches the Pacific Ocean "through" groundwater-a nonpoint source-the County contends it is not liable under the CWA. The County reads Alaska out of context. First, we never addressed in Alaska whether a polluter may be liable under the CWA for indirect discharges because the issue was not before us. See id. Furthermore, when we stated the "pollution [must] reach[ ] the water through a confined, discrete conveyance," we were merely stating the pollution must come "from a discernible conveyance" as opposed to some "[un]identifiable point of discharge." Id. (emphasis added) (citations omitted). As the "discharge water [there] [was] released from a sluice box, a confined channel within the statutory definition," the activity came within the ambit of the CWA. Id. (emphasis added). This case is no different-the effluent comes "from" the four wells and travels "through" them before entering navigable waters. Id. It just also travels through groundwater before entering the Pacific Ocean.
A more recent case Greater Yellowstone Coalition v. Lewis supports the Associations' contention that the CWA governs indirect discharges. We held there that precipitation flowing into pits containing "newly extracted waste rock," "filter[ed]" hundreds of feet underground, and "eventually entering the surface water" did not constitute point source pollution under the CWA.
The wells here are more akin to the stormwater drain system in Greater Yellowstone than they are to the pits that collected the waste rock. Unlike the pits that "[did] not constitute points sources within the meaning of the CWA," the wells here "confine[ ] [and] contain[ ] ... the [effluent]" before discharging it "[into] the ground and, eventually, surface water."
Our sister circuits agree that an indirect discharge from a point source to a navigable water suffices for CWA liability to attach. In Concerned Area Residents for Environment v. Southview Farm , the Second Circuit held "[t]he collection of liquid manure into tankers and their discharge on fields from which the manure directly flows into navigable waters are point source discharges under the case law."
Furthermore, in Sierra Club v. Abston Construction , the Fifth Circuit recognized that the "ultimate question [as to CWA liability] is whether pollutants [are] discharged from 'discernible, confined, and discrete conveyance(s)' either by gravitational or nongravitational means."
The Second Circuit further recognized the indirect discharge theory in Peconic Baykeeper, Inc. v. Suffolk County , where it rejected the district court's conclusion that "because the trucks and helicopters discharged pesticides into the air, any discharge was indirect, and thus not from a point source."
But accepting the County's position-that pollutants must "travel via a 'confined and discrete conveyance' " to navigable waters for CWA liability to attach-would necessarily preclude liability in cases such as Peconic Baykeeper and League of Wilderness . The pollutants in both cases traveled to navigable waters via the air, and not via the point sources from which they were released. See Peconic Baykeeper ,
Indeed, writing for the plurality in Rapanos v. United States , Justice Scalia recognized the CWA does not forbid the " 'addition of any pollutant directly to navigable waters from any point source,' but rather the 'addition of any pollutant to navigable waters.' "
Although the Court in Rapanos splintered on other issues, no Justice disagreed with the plurality opinion that the CWA holds liable those who discharge a pollutant from a defined point source to the ocean. Justice Kennedy's opinion concurring in the judgment objected only to the plurality opinion's creation of certain limitations on the Executive Branch's authority to enforce the CWA's environmental purpose and statutory mandate.
In past cases, we have recognized Justice Kennedy's concurrence in Rapanos , not Justice Scalia's plurality opinion, as controlling. But we have only done so in the context of "determin[ing] whether a wetland that is not adjacent to and does not contain a navigable-in-fact water is subject to the CWA." United States v. Robertson ,
Justice Scalia's plurality opinion demonstrates the County is reading into the statute at least one critical term that does not appear on its face-that the pollutants must be discharged "directly" to navigable waters from a point source. As "the plain language of a statute should be enforced according to its terms," we therefore reject the County's reading of the CWA and affirm the district court's rulings finding the County liable under the Act. ASARCO, LLC v. Celanese Chem. Co. ,
We hold the County liable under the CWA because (1) the County discharged pollutants from a point source, (2) the pollutants are fairly traceable from the point source to a navigable water such that the discharge is the functional equivalent of a discharge into the navigable water, and (3) the pollutant levels reaching navigable water are more than de minimis .
c. Disposals of Pollutants into Wells
Finally, the County contends its effluent injections are not discharges into navigable waters but "disposal[s] of pollutants into wells," and that the Act categorically excludes well disposals from the permitting requirements of § 1342. See, e.g. , § 1342(b)(1)(D). As the County urges a "construction that the statute on its face does not permit," we "reject" it here. Carson Harbor Vill., Ltd. v. Unocal Corp. ,
The County first relies on § 1342(b), which permits the EPA to delegate CWA authority to "each State desiring to administer its own permit program for discharges
The County also argues that under § 1342(b)(1)(D), only the State , not the EPA, has authority to regulate well disposals. This Court, however, has already concluded the Act does not "expressly grant[ ] to the EPA or [the administering] state agency the exclusive authority to decide whether [there is a CWA violation]," even while recognizing § 1342 "suspend[s] the availability of federal NPDES permits once a state-permitting program has been submitted and approved by the EPA." Ass'n to Protect Hammersley, Eld, and Totten Inlets v. Taylor Res., Inc. ,
The County next relies on § 1314(f)(2)(D), which "directs the [EPA] to give States information on the evaluation and control of [nonpoint source] 'pollution resulting from ... [the disposal of pollutants in wells].' " S. Fla. Water Mgmt. Dist.v. Miccosukee Tribe of Indians ,
The CWA's definition of "pollutant" also supports this reading. See § 1362(6)(B). Under the Act, "[t]his term [excludes] ... water derived in association with oil or gas production and disposed of in a well, if [1] the well used either to facilitate production or for disposal purposes is approved by authority of the State in which the well is located, and [2] such State determines that such injection or disposal will not result in the degradation of ground or surface water resources ."
2. Fair Notice
"Due process requires that [a statute] provide fair notice of what conduct is prohibited before a sanction can be imposed." United States v. Approximately 64,695 Pounds of Shark Fins ,
In determining whether there has been fair notice, this Court must "first look to the language of the statute itself." Shark Fins ,
It is undisputed the County "add[s] ... pollutants"-treated effluent-"to navigable waters"-the Pacific Ocean-"from ... point source[s]"-its four injection wells. See
But the County contends it did not have "fair notice" because the statutory text can be fairly read to exclude the wells from the NPDES permit requirements. It argues again that pollution via its wells and the groundwater is nonpoint source pollution not subject to the CWA's prohibitions. Even so, "due process does not demand unattainable feats of statutory clarity." Planned Parenthood of Cent. and N. Ariz. v. State of Ariz. ,
The County further contends it did not have "fair notice" because HDOH-the state agency tasked with administering the NPDES permit program-has maintained an NPDES permit is unnecessary for the wells. The County does not describe HDOH's position accurately. As late as April 2014, HDOH stated in a letter to the County it was still "in the process of determining if an NPDES permit is applicable" to the wells. That HDOH has not solidified its position on the issue does not affirmatively demonstrate it believes the permits are unnecessary, as the County contends. And the fact that the County "has been unable to receive an interpretation of the [CWA] from ... [HDOH] officials administering the program" is also "[ ]not ... enough to render [enforcement of the CWA]" unconstitutional.
CONCLUSION
At bottom, this case is about preventing the County from doing indirectly that which it cannot do directly. The County could not under the CWA build an ocean outfall to dispose of pollutants directly into the Pacific Ocean without an NPDES permit. It cannot do so indirectly either to avoid CWA liability. To hold otherwise would make a mockery of the CWA's prohibitions. Under the circumstances of this case, we therefore affirm the district court's summary judgment rulings finding the County discharged pollutants from its wells into the Pacific Ocean, in violation of the CWA, and further finding the County had fair notice of what was prohibited.
AFFIRMED.
Notes
We do not mean to suggest that a CWA violation requires some form of intent. It does not. See Comm. to Save Mokelumne River v. East Bay Mun. Util. Dist. ,
We assume without deciding the groundwater here is neither a point source nor a navigable water under the CWA. Hence, it does not affect our analysis that some of our sister circuits have concluded that groundwater is not a navigable water. See Rice v. Harken Expl. ,
The EPA as amicus curiae proposes a liability rule requiring a "direct hydrological connection" between the point source and the navigable water. Regardless of whether that standard is entitled to any deference, it reads two words into the CWA ("direct" and "hydrological") that are not there. Our rule adopted here, by contrast, better aligns with the statutory text and requires only a "fairly traceable" connection, consistent with Article III standing principles. See, e.g. , Spokeo, Inc. v. Robins , --- U.S. ----,